“Striketober” highlights union organizing concerns for Ohio craft breweries

One of the unexpected byproducts of the ongoing Covid-19 pandemic is a corresponding rise in union organizing and other union-related activity. This crisis has magnified attention on key union agenda items and talking points such as worker safety and higher pay. Unions have not been shy about pressing these issues. "Striketober" is in full effect, with more than 100,000 workers walking off the job in the past week alone. According to The Wall Street Journal, employees are angry and are increasingly turning to labor unions to vent.

Unions, however, are not just focusing on current members. More importantly for all employers, potential members also have unions' full attention. Indeed, earlier this summer, and hitting way too close to home, production employees at Great Lakes Brewing Company, Ohio's oldest and largest craft brewery, signed union cards to be represented by the United Steelworkers.

Netflix’s termination of the organizer of a trans employee walkout very well might be legal

Late Friday, The Verge reported that Netflix fired one of the leaders of an internal trans employee resource group who was organizing an employee walkout later this week. The employee had been encouraging trans employees and allies to walk off the job in protest of Netflix's handling of the Dave Chappelle special The Closer (in which the comedian and the streamer have been criticized for the special's transphobic content).

According to the report, Netflix fired the employee based on its suspicion that s/he leaked confidential metrics on the Chappelle Special to Bloomberg, including how much Netflix paid for it and how many have streamed it.

UPDATE: HIPAA (mis)information and the Covid vaccine

Earlier this week I wrote about a national payroll provider that shared some very incorrect information about an employer’s HIPAA responsibilities on its website.

That company, ADP, saw my post and reached out to me to let me know that they updated their article.

“I saw your blog that highlighted an oversight from one of our writers on our Spark Blog. It was good to see in that we were able to correct it immediately.”

(Sadly, the Oxford comma omission persists, but I’ll take my victories where I can get them.)

You can find their updated article here. 

Well played, ADP. 👏 

WIRTW #600: the “Here, there, and every … where” edition

This week I rejoined my good friends Marc Alifanz and Kate Bischoff on the Hostile Work Environment podcast to discuss the Season 2 finale of Ted Lasso. 

Spoiler alert: you should absolutely avoid listening until you complete Season 2. We discussed the employment law and human resources beats we saw in the episode, including Nate's descent into darkness, the fallout of Sam's big choice, and the actions of Trent Crimm, Independent. You'll also hear talk of mannequins, sky diving, and arugula. 

Find it wherever you get your podcasts, including Apple Podcasts, Overcast, Spotify, Google Podcasts, and Stitcher.

Here are the best things I read online this past week that I think you should be reading, too.

Coronavirus Update 10-14-2021: We still don’t know what OSHA’s vaccine standard says … but we’re getting closer

Late Tuesday, news broke that OSHA had submitted in vaccine mandate Emergency Temporary Standard to the White House’s Office of Information and Regulatory Affairs for its review. What does this mean? It means that OSHA has taken the first important step towards publishing the ETS and implementing its vaccine mandate for employers with 100 or more employees.

But that's it.

Coronavirus Update 10-13-2021: Unfortunately I need to keep clarifying misconceptions about HIPAA

I came across the following information on the website of a prominent national payroll provider:

Q: In what ways can/should HR departments capture and record employee vaccination information? What are the HIPAA implications?

A: When it comes to recording this data, it's a good idea to keep it separate from other employee information on file. It should not be part of standard employee records and should be accessible to as few people as possible. Because vaccination records are covered under HIPAA regulations, businesses must ensure they're diligent about securely collecting, recording and storing this information to limit the risk of compromise.

It cuts me to the quick to see an entity that should know better getting HIPAA so very wrong. If they can't get it correct, we have little hope that the general public will stop raising HIPAA as an objection to any disclosure of their health information, including vaccination status.

So, to clear the air once and for all, this is what HIPAA covers and doesn't cover, and why it does not apply to employers gathering vaccine-related information from employees.

Coronavirus Update 10-12-21: A prior Covid infection is not a defense to an employer’s vaccine mandate

"I don't need the vaccine; I've already had Covid and have superior natural immunity" is a popular refrain from some people who've been infected with Covid and, for that reason or another, are hesitant to get the Covid vaccine.

Does that argument hold up against an employer's vaccine mandate? According to two federal courts that recently examined the issue, the answer is a clear no. Kheriaty v. Regents of the Univ. of Calif. (decided 9/29/21 by a California federal court judge) and Norris v. Stanley (decided 10/8/21 by a Michigan federal court judge) each examined whether an employee was entitled to a preliminary injunction against their employer's vaccine mandate.

In each case, the Court sided with the employer and rejected the employees' pre-existing immunity arguments.